United States v. Gregory Gibson, 2016 U.S. App. LEXIS 18961

Gregory Gibson admitted guilt to sex trafficking of a 16‑year‑old and pleaded guilty to the federal sex‑trafficking count.
Investigation showed Gibson posted multiple ads on Backpage.com misrepresenting the minor's age, solicited customers, and had video of sexual acts with the minor on his phone.
The PSR recommended a +2 enhancement under U.S.S.G. § 2G1.3(b)(3)(B) for use of a computer to solicit persons to engage in sex with a minor, and a +5 enhancement under U.S.S.G. § 4B1.5(b) for a pattern of activity involving prohibited sexual conduct.
Gibson objected to both enhancements; the district court overruled the objections and adopted the PSR, producing an advisory range later reduced by departures/variance to a 144‑month sentence.
Gibson appealed, arguing the computer enhancement should apply only to direct communications with the minor (per Application Note 4) and that the pattern‑of‑activity enhancement cannot be based solely on conduct comprising the instant offense.

Issue	Plaintiff's Argument (Gibson)	Defendant's Argument (Government)	Held
Whether U.S.S.G. § 2G1.3(b)(3)(B) applies where a computer is used to solicit third parties (ads on Backpage) rather than to communicate directly with the minor	Note 4 limits subsection (b)(3) to direct computer communications with a minor or caretaker, so (b)(3)(B) should not apply to Backpage ads	The guideline text expressly covers solicitation of third parties; Note 4 is inconsistent with (b)(3)(B) and thus the guideline controls	Affirmed: the +2 enhancement under (b)(3)(B) applies; Application Note 4 is inconsistent and does not negate (b)(3)(B)
Whether U.S.S.G. § 4B1.5(b)’s five‑level increase for a "pattern of activity" requires prior, separate sex‑offense convictions distinct from the instant offense	The two separate occasions required for a pattern cannot be satisfied by multiple instances that are part of the single instant offense	Precedent allows § 4B1.5(b) to apply even when the pattern consists of conduct involved in the instant offense	Affirmed: § 4B1.5(b) may apply where the pattern consists of multiple occasions within the present offense

Stinson v. United States, 508 U.S. 36 (1993) (guideline commentary is authoritative unless inconsistent with the guideline)
United States v. Dixon, 822 F.3d 464 (8th Cir. 2016) (standard of review for guideline enhancements: de novo legal review, clear‑error for factual findings)
United States v. Rojas, 520 F.3d 876 (8th Cir. 2008) (§ 4B1.5(b) may apply where pattern consists of conduct in the instant offense)
United States v. Wells, 648 F.3d 671 (8th Cir. 2011) (panels bound by prior circuit precedent on guideline interpretation)
United States v. Pringler, 765 F.3d 445 (5th Cir. 2014) (Application Note 4 is inconsistent with § 2G1.3(b)(3)(B))
United States v. Hill, 783 F.3d 842 (11th Cir. 2015) (same: plain language of § 2G1.3(b)(3)(B) controls over Application Note 4)
United States v. Cramer, 777 F.3d 597 (2d Cir. 2015) (same conclusion regarding Note 4 and subpart (B))
United States v. McMillian, 777 F.3d 444 (7th Cir. 2015) (same conclusion regarding Note 4 and subpart (B))